Punjab

StateCommission

RP/3/2015

Dr. Nitin Aggarwal - Complainant(s)

Versus

Gurcharan Singh - Opp.Party(s)

Tribhawan Singla

19 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,  PUNJAB  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

 

Revision Petition No.03 of 2015

                                               

             Date of institution  :    21.01.2015

Date of decision     :    19.02.2015

 

Dr. Nitin Aggarwal, Mohan Dai Oswal Cancer Treatment & Research Foundation, G.T. Road, Sherpur Bye Pass Road, Ludhiana-141009.

 

…….Petitioner/Opposite Party No.3

Versus

1.      Gurcharan Singh (since deceased), through his following Legal       Heirs:

i)        Shinder Kaur widow of Gurcharan Singh;

ii)       Rajdeep Singh

iii)      Rajinder Singh; sons of Gurcharan Singh

          All Legal Heirs of deceased Gurcharan Singh, Residents of    Dhanaula, Tehsil and District Barnala.   

                                                          …Respondents/Complainants

 

2.      The Incharge/Authorized Signatory, Mohan Dai Oswal Cancer         Treatment & Research Foundation, G.T. Road, Sherpur Bye      Pass, Ludhiana-141009.

3.      Dr. Yogesh Arora, Sr. Consultant, Deptt. of Mohan Dai Oswal           Cancer Treatment & Research Foundation, G.T. Road,      Sherpur Bye Pass, Ludhiana-141009.  

 

                                      …Respondents/Opposite Parties No.1 & 2

 

Revision Petition against the order dated 11.12.2014 of the District Consumer Disputes Redressal Forum, Ludhiana.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Baldev Singh Sekhon, Member.

                        Mrs. Surinder Pal Kaur, Member.

 

Present:-

 

          For the petitioner    :  Shri Tribhuwan Singla, Advocate.

 

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    The petitioner/opposite party No.3 has preferred this revision against the order dated 11.12.2014 passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short, “District Forum”), vide which the application filed by him for dismissal of the complaint, was dismissed.

2.                The facts, to be taken notice of for the disposal of the present revision, are that Gurcharan Singh, complainant filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, “the Act”) against Mohan Dai Oswal Cancer Treatment & Research Foundation, Dr. Yogesh Arora and Dr. Nitin Aggarwal, opposite parties, with the allegations that he had obtained treatment from the opposite parties, as outdoor patient and then he was operated upon by them, after admission in the hospital, for Urinary Bladder Cancer. The operation was conducted by Dr. Nitin Aggarwal for the removal of that cancer, but was not fully cured on account of the medical negligence of the opposite parties. The acute pain subsisted and he was taken to Civil Hospital, Dhanaula on 09.03.2012, where in the X-ray of the abdomen, one pair of scissors was found inside his body. Thereafter, he was taken to PGI, where he was operated for the removal of those scissors. The complaint was admitted and notices were issued to the opposite parties. Petitioner/opposite party No.3 appeared before the District Forum and moved application for the dismissal of the complaint, on the ground that the same was gross misuse of the process of law; as there was no relationship of “consumer” and “service provider” between him and the complainant. The main contention raised in the application is that the complainant was admitted in opposite party No.1 hospital in Medical Oncology Department and was referred to him and the complainant never directly approached him in his individual capacity and had paid no money to him for his treatment. On account of the non-existing of the said relationship, the complaint is not maintainable against him.  He was a consumer of only opposite party No.1 hospital. The application was contested by the complainant by filing reply to the same and pleaded therein that the petitioner/opposite party No.3 is the employee of the hospital and had operated upon him and after the operation, had been attending him for postoperative care. After going into the averments of the parties and the record, the District Forum dismissed the application, vide aforesaid order.

3.                We have heard the learned counsel for the petitioner/opposite party No.3 at length and have carefully gone through the record annexed with the revision petition.

4.                It has been submitted by the learned counsel for the petitioner that no consideration was paid by the complainant to the petitioner for his operation and, as such, it cannot be held that he availed his services for a consideration.  Thus, the complainant does not fall under the definition of “consumer” qua the petitioner.  In these circumstances, the District Forum was not justified in dismissing the application and the same should have been allowed.

5.                Admittedly, the petitioner is an employee of opposite party No.1 hospital and had performed the operation of the complainant. The consideration for availing/hiring the services of the hospital was paid to the hospital itself, but the fact remains that the petitioner is an employee of that hospital. It is now well settled that even if the consideration has not been paid directly to the doctor, but where such a consideration is paid to the hospital, then the doctor of that hospital, who performs the operation, is liable to the person, who pays that consideration to the hospital itself. The relationship of “consumer” and “service provider” do exist between the complainant and opposite parties. We do not find any ground to admit this revision to be heard on merits.

6.                Firstly, the petitioner filed the false and frivolous application before the District Forum and now he has come up in this revision, knowing fully well that he had performed the operation of the complainant and medical negligence has been attributed against him. In these circumstances, the revision petition filed by him is dismissed under Section 26 of the Act, with Rs.5,000/- as costs, which are to be deposited in the Consumer Free Legal Aid Fund of this Commission, within 30 days of the receipt of copy of the order.

 

 

                                                        (JUSTICE GURDEV SINGH)

                                                                      PRESIDENT

                                                         

 

 

                                                        (BALDEV SINGH SEKHON)

                                                                         MEMBER

                                                         

 

 

                                                      (MRS. SURINDER PAL KAUR)

February 19, 2015                                       MEMBER

(Gurmeet S)